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Constitutional Law
Unit Assessment 1
September 26, 2005
the Constitution and expresses his opinion in accordance with his own beliefs as to how it
Supreme law of the United States and should not be ignored or subordinated by any
branch of the government. His approach to interpretation is not one of original intent
because he was one of the founders, from reading Marshall’s opinion it is apparent that in
his mind it was his duty to interpret the Constitution as he saw fit as long as he was true
B. Marshall’s ruling in Marbury did not allow the judiciary to have to significant of a
role in the governance of America. In fact it was very necessary that the power of
judicial review become a powerful part of the judicial arsenal. This allowed the judiciary
equal with the Executive and Legislative branches of government. With the power of
judicial review the Judiciary was able to secure its place among the Executive and
C. Some would say that the Judiciary is anti-democratic because it is a small, unelected
body without term limits. The Judiciary is not intended to be a democratically elected
group because those who are judges are required to have an intimate knowledge of the
Constitution that would be unattainable with the interference of campaigning for a
judgeship. The fact that judges are not elected and that they do not have term limits also
helps them rise above the pettiness of partisan politics. The lack of campaigning and fear
of removal from office allows Supreme Court judge to make decisions that are more in
accord with the Constitution and not dictated by the popular opinions of the time.
D. The Judiciary is the least dangerous branch of the government because of its passive
role. Where the Executive and Legislative branches of government actively dictate actual
policy and agendas for society, the Judiciary is passive in its role of declaring things in
accord or not in accord with the Constitution. This passive role keeps it from becoming
an actual threat to our government because it can not assume the powers of another
branch and dictate policy. This is part of the system of checks and balances which is an
integral part of our American system and vital to the balance of power within our
government. There is also a lack in historical precedent for a fear of usurpation form the
judiciary. Historically the greatest threat to a democratic government has come from the
military backing of the Executive, a small group in the Legislative or the military itself.
E. The role that the Judiciary is currently playing is sufficient in the determination of
great policy issues in America. The passive role that the Judiciary plays in its interactions
with the other branches is crucial to the balance of power within the government. By
increasing the power of the Judiciary, power is taken away from another branch, and
diminishing the role of the Judiciary increases the power of the other branches, severely
4. A. In the Case of Bush v. Gore the Supreme Court acted wisely by not becoming
involved in a situation that had no justiciability. By deciding to not to hear the case of
Bush v. Gore, the Supreme Court heeded their self-imposed limitations on judicial power.
The case was thrown out because it was one of political importance not legal importance,
an example of the court yielding to the political question doctrine. Political question
doctrine states that the court does not have the jurisdiction over any case that can be
settled in a political means. By exercising the political question doctrine, the court
yielded to justiciability.
itself in order to limit their own powers as well as limit the number of cases that they try.
These limitations are advisory opinions, mootness, standing, ripeness and political
question doctrine. Advisory opinions are a denial by the court to give advice on
hypothetical situations; a case must be real in order for the court to rule on it. If a case
has no significant impact on the litigants it is dismissed on basis of mootness. A case can
also be dismissed because of standing, whether the litigant is proper party to bring the
lawsuit, ripeness, a case must be at a certain stage of maturity before it can be engaged,
because by exercising justiciability the court is ensuring the system of checks and
balances. Justiciability also lowers the number of cases that a justice has to hear as well
political elites who are interested in making drastic changes to the Constitution. Their
main focus is making government more efficient by eliminating many aspects of the
Constitution that they see as causing wasteful loses of time and money. Some of the
items that they push for are bonus seats in the House and Senate, two term limit for the
President would be repealed and members of Congress would be able to fill cabinet
Reform believe that the Constitution is in a deep crisis and that these proposals and others
are a way to amend our current Constitutional problems. But by enacting many of these
acts our government would be made more efficient but at the same time our government
constructive conflict that occurs between the two political parties. These changes would
also diminish the separation of powers between the Executive and Legislative branches
expansion and combing of these powers creates a situation that would be ripe for a more
B. The proposal of the Committee on Constitutional Reform with the most merit would
be that of a national referendum. A national referendum would allow the people of the
United States to more directly express their feelings on certain policies. This would
feeling of disenfranchisement that many Americans feel towards our political system. By
giving the American people a direct voice in American politics, they would feel as though
they are actually a part of the process and become involved in other parts of the political
spectrum as well, such as becoming informed on national issues and voting on all
manners of elections.
7. A. If I were the President of the United States and had the opportunity to appoint a
justice to the Supreme Court, I would look for a nominee who has the necessary work
experience as well as an intimate understanding of the Constitution. In my opinion
partisan politics should not be a factor in the nomination of an applicant. Experience and
affiliation, considering the fact that most justice’s who were nominated with partisan
intentions in mind, in fact very rarely make decisions along party lines but are instead
B. I would not make a decision based solely on the Walker and Hulbury study on
knowledge are far more important than the more superficial and irrelevant facts of the
Walker and Hulbury study. Characteristics such as family background, colleges attended
and regional characteristics are not truly a determinate of whether or not a justice will be
good or bad. It is the character of the judge himself/herself that should be examined and
whether or not that person has the desired experience and Constitutional knowledge.
C. After having looked at the websites I feel that John Roberts has a very good chance of
becoming a justice. He has an excellent work history, plus there is a Republican majority
in the Senate which increases his odds of being becoming a justice. Ignoring party
politics, I believe that he is more than qualified for the position and that he would be a
8. In constitutional interpretation there are two main schools of thought. The first is that
of original intent which tries to interpret the Constitution in accordance with what the
Founders would have wanted. The one of main problems with original intent is its lack
of flexibility. With original intents focus on the past makes it difficult to foresee future
ramifications of an issue, for the same reason it is also unable to adapt to situations which
the Founders could not have possibly foreseen. Another problem with Original intent
comes down to how do we really know how the Founders wanted the Constitution to be
interpreted since they are dead. This lack of direct contact with the Founders leads to a
certain degree of interpretation on the part of those who are using original intent in
contortion of the Founders beliefs in order push ones own agenda. A positive of original
intent is that it provides an ideological base from which justices can make decisions.
Basing decisions on original intent leaves less room for interpretation which many
The second school is that of interpretist approach, which focuses on interpreting the
Constitution along lines that are more contemporary and therefore more relevant to the
issue. The interpretist approach allows for more flexibility than that of the original intent,
because it takes into account more contemporary solutions concerning an issue instead of
looking to the past for help. The interpretist approach is seen as more forward thinking
were as the original intent approach is more retrospective. Critics argue that the
interpretist approach leaves far too much from open for individual justices to imprint
their personal beliefs on an issue. Where original intent has an ideological base to build
on, the interpretist approach does not and is in fact subject to the individual justices who